Building Penalization Scheme (BPS) is the scheme brought in by the Andhra Pradesh Government in the Year 2015. BPS program penalizes the buildings constructed unauthorizedly and in deviation to sanctioned plan as on 31.12.2014. The objectives of Building Penalization Scheme are to penalize every such building whose construction is unauthorized or has been constructed with deviations to the sanctioned plan, thus bringing all such units into the planning fold. The scheme provides an opportunity to the owners of the flats in such buildings to regularize any such anomalies.
However, as a part of regularization, it involves obtaining different mandatory approvals from various departments. This is more applicable to high rise buildings.
Residential buildings with height of 18 meters and above are considered as high rise buildings. Buildings having pent houses which exceed the stipulated height of 18 m and such buildings also fall under the category of High Rise Buildings and all provisions of High Rise Buildings shall be applicable to the entire building. Most of these pent houses are unauthorized constructions by the builders. Also, the construction of unauthorized buildings by indulging in the construction of additional rooms is rampant in cities of Andhra Pradesh and more so, in Tier-II and Tier-III cities. It used to be and still extremely difficult to find out if a building is authorized or not and the builders spare no effort in luring potential buyers including NRIs and non-residents to buy in such projects. Although such constructions are rampant, Reputed Legal Firm, Lex India Juris in a survey, came across one such classic case which poses a challenge even to the legal system. The building referred to has penthouses and further, in all floors of the building, the builder has constructed flats with additional rooms whose size is two times to sanctioned plan, thus violating the sanctioned plan.
For these high-rise buildings,prior clearance is required to be obtained by the applicants from the concerned authorities, as stipulated in section 13 of the Andhra Pradesh Fire Service Act, 1999 from the AndhraPradesh State Disaster Response & Fire Services Department and also from Airport Authority of India. Ideally speaking, all such approvals have to be obtained by the builder at the time of construction and once all such mandatory approvals are in place, the builder should seamlessly hand over the flats to the purchaser. However, the builders are jeopardizing the status of the purchasers by not obtaining the appropriate approvals.
As part of the pre-requisites for such approvals, it is mandatory to install fire-fighting equipment for buildings with height of 18 meters and above or having more than five floors, in case of a residential building. Further, for such buildings, a NOC(No objection certificate) has to be obtained from the Fire Department.
According to the observations of law firm ‘Lex India Juris’, it has been found that those who are in illegal occupation of buildings, are not volunteering to get their flats regularized despite the sincere attempts of the government which is coming out with BPS programs regularly. The fact is thatthe residents who have been residing in such buildings for years now are of the opinion that since they have been residing for many years, their status remains as many are residing in these buildings for years together and they feel that their status remains unfettered. Such persons, by not coming forward for regularization of their apartments are also spoiling those who genuinely want to availof the regularization option under BPS.
This is where the Apartment Owners who wants to regularize their apartments are facing problems. The problems include the following.
In the case of high rise building every apartment owner has to have the NOC from Fire Department and Airports Authority of India. Only when each of the apartment owner applies for regularization under BPS, with these approvals the competent authority of the municipality will grant Occupancy Certificate. In Apartment Complexes, every flat owner has to bear the expenses relating to regularization, penalties for obtaining fire NOC and NOC from AAI. Besides, all the apartment owners have to proportionately bear the expenses for the Fire Equipment in high rise buildings as the equipment is going to be installed in each and every floor. Though the builders and developers are responsible for this, but when the time gap increases, builders tend to abscond or washout their responsibilities. In such a scenario, though a recovery can be made from the builder subsequently by the apartment owners, it is advisable for the apartment owners to avail of the opportunity of regularization in a collective manner with all the apartment owners together.
Government should take measures to make those non-responsible apartment owners who do not want to avail the regularization schemes under BPS. At the same time, in large apartment complexes where bringing the consensus of all is difficult, in such cases, the regularization aspects may also be considered on individual basis by collecting some proportionate deposit for the provisions of fire equipment etc.
Government should also make it mandatory to have permanent Occupancy Certificates (OC) online for buildings, and double the amount of property taxes on those who do not come forward to participate in regularization. At the same time, the Government by collecting the penalization charges from the willing members, may grant immunity to them from any kind of demolition threats as the compoundable offence is compensated through penalization charges.
There are several advantages of Building Penalization Schemes and every affected person must utilize the same. The advantages include, constructed building with deviations to sanctioned plan or totally unauthorized will get formal orders of regulation which will remove the uncertainty and threat of demolition and will get the occupancy certificate which is mandatory as per Municipal Laws. Further it brings all the unauthorized constructions into planning fold and helps to regulate the development in urban areas. It provides an opportunity to the owners of the buildings to regulate their unauthorized constructions and deviations made to the sanctioned plan.
BPS provides relief to several persons who have purchased buildings without any knowledge about the building regulations. These advantages may be propagated and the issues faced by genuine law abiding citizens who are interested in getting the regularization must be addressed by government. In Apartment Complexes the problem of non-cooperation from the fellow flat owners must be recognized. A few genuine individuals cannot cough up the money for such approvals, when others flat owners are not ready to shell out the money required for the same and got habituated with the illegality. This conflict needs to be resolved with immediate effect and justice should be hastened in the favor of the law-abiding individuals who wish to get their apartments regularized.
Dr. V.V.L.N. Sastry is a Researcher in Law at Walden University, U.S.A
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]